Client Alert: The Rehabilitation Code of Conduct and Low Value Injuries

The new Rehabilitation Code of Conduct becomes operational from 1 December 2015. However, it is for the parties to decide when and how it is used.

It is aimed at promoting the collaborative use of rehabilitation and early intervention to help the injured claimant make the best and quickest possible recovery from injuries sustained.

The new code recognises that there are differences between minor and more significant injuries from a rehabilitation perspective and, for the first time, provides a separate process for lower value and for “soft tissue” injuries.

Low value injuries

In summary, the process for low value injuries to be dealt with in accordance with the code is as follows:

The need for rehabilitation is considered at the outset and communicated electronically as soon as is practicable. This is usually via the CNF where it should be recorded in Section C.

Unless there is a medical report covering full rehabilitation needs then an initial Triage Report (TR) should be obtained.

Where the parties agree that further reports are required, the assessment process may have two further stages:

• Assessment Report (AR) from the healthcare professional (HCP) treating the claimant.
• Discharge report (DR) from the HCP on the treatment provided.

The code permits the person providing the TR to provide the rehabilitation. However, the person providing the TR, AR, DR and rehabilitation must be entirely independent of the person providing the medical report.

The TR, AR, DR and the provision of rehabilitation may only be provided by a person with a direct or indirect link with the solicitor or compensator with the agreement of the other party.

The TR will be prepared following a telephone call in most cases and will be very simple - usually in the form of an email. In all cases the TR, AR and DR should be made immediately available to all parties.

The content of each report is prescribed in the code but points of note are:

The Triage Report should:

• Contain sufficient information for the parties to understand the mechanism of injury.
• Cover the treatment recommended and its cost and duration.
• Not provide a prognosis or diagnosis.
• Contain the expected outcome of the treatment.

The Assessment Report should:

• Contain a primary rehabilitation goal and expected outcome.
• Outline the duration, number, type and length of treatment.

The Discharge Report should:

• Contain the current nature, symptoms and severity of injuries.
• Confirm whether the primary goal has been achieved.
• Confirm the number, type and length of treatment sessions together with DNAs (did not attend).
• State the current impact of injuries on work and daily living.
• Confirm whether the claimant has achieved as far as possible a fully functional recovery.
• Confirm whether additional treatment is required to address symptoms.

It is important to note that the parties cannot rely upon the TR in the litigation unless both parties agree. However, this restriction does not apply to the AR and DR and any notes created during the treatment process are subject to the rules governing disclosure.

Keoghs comment

The code of conduct provides some incentives to those with a financial interest in the rehabilitation process as follows:

• It allows for up to three reports to be obtained and in doing so provides an opportunity to charge for providing these reports together with fees for obtaining and copying records. We have previously been successful in opposing such claims in Mulholland v Hughes.
• It allows the person providing the Triage Report to provide the treatment. This allows the clinical need for rehabilitation to be swayed by financial interest in provision of rehabilitation.
• It envisages that only the Triage Report will be obtained in most cases. It allows claimants to object to an Assessment or Discharge Report in circumstances where a claimant is asymptomatic and has made a fully functional recovery.
  
  These financial incentives can be alleviated by compensators offering to agree to the code where:
• All treatment is to be provided by a rehabilitation provider that is independent of the person providing the Triage Report.
• The rehabilitation provider has no direct or indirect business connection with the claimant’s solicitor, under paragraph 4.7 of the code, or the person.
• The rehabilitation provider provides an Assessment and a Discharge Report.